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5 Jun 2006 : Column 56

I want to deal now with the reports of the Constitutional Affairs Committee—the third report of 2005-06 on compensation culture, in which there is a substantial section about the Bill, and the fifth report on the Bill itself, which is, in effect, a report of the response from the right hon. Member for Liverpool, Wavertree (Jane Kennedy), who was then Minister of State with responsibility for quality and patient safety in the Department of Health. She used her response to clarify a number of issues and we commented briefly on those in the fifth report.

Many of the issues in the third report will come up again on Thursday when we debate the Compensation Bill and I hope to refer to those matters then. The report addresses issues relating to the so-called compensation culture, which is sometimes adduced in respect of the Bill and the NHS generally. It was my Committee’s conclusion that there is not a compensation culture that is driven by an increase in personal injury claims. The evidence does not point to that. There are many problems in relation to excess risk aversion in many parts of the public sector and elsewhere, but they may be driven by a whole lot of other factors, rather than by an actual increase in personal injury litigation. There is considerable confusion in the media on that point.

In looking at the NHS Redress Bill, we raised a number of issues and I want to touch on some of them. We referred particularly to the total lack of detail in the Bill and its heavy dependence on secondary legislation and on non-statutory schemes to fill out that secondary legislation. That is a far from satisfactory way of legislating. It leaves the House making quite major decisions without knowing how they will work in practice and, in this case, without seeing even the draft secondary legislation that would be involved. It is quite a dangerous trend in Government to create framework legislation—we have seen it in many other areas too—that leaves the House making decisions of vague general principle and being able to deal with quite important aspects of the legislation only by way of orders. As hon. Members must be aware, even the affirmative procedure is profoundly unsatisfactory if a specific defect is found, but Members do not want to vote out the order completely because they do not want to prevent a scheme or a piece of legislation from coming into operation. The negative procedure is wholly inadequate in many such instances because hon. Members are unable even to cast a vote on measures, let alone secure the amendment of something that they consider to be fundamentally unsatisfactory. The Committee was thus critical of such a lack of detail.

The Committee was presented with no compelling evidence that doctors and lawyers will be prepared to work for fixed fees and was not told what those fixed fees might be. The Government’s response made reference to fixed fees payable by the Legal Services Commission, but those fees are likely to be lower than those payable for private work. It is not apparent whether the Department expects lawyers to work for fixed fees at LSC rates, or whether participants will be able to go only to the LSC to pursue their grievance. Reference was made earlier in the debate to the problem that will arise if the LSC effectively acts as a gatekeeper to the scheme for anyone who would be eligible for legal aid.

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The fact that medical experts can be instructed jointly does not mean that they will be clearly independent. If the NHS Litigation Authority was able to identify the doctors that it wanted and also paid the bill, it would not lead to a perception of independence. In the world of personal injury litigation, there is often talk of claimant and defendant doctors being two rather different groups of people. Indeed, the same is true of claimant and defendant lawyers. We heard an interesting example from the hon. Member for Wolverhampton, South-West (Rob Marris), who is a former personal injury lawyer. He referred to all the lawyers engaged on the Department’s side as “rubbish”, which, on reflection, he might consider was a rather extreme view. However, that underlines the fact that there is a tendency for some lawyers and doctors who are called on to give evidence to be thought of as generally of use to claimants, while others are thought to be generally of use to defendant authorities. If the NHS Litigation Authority uses doctors who are thought to come into its category, it will further reduce the possibility of the proceedings being regarded as independent.

The Department acknowledges that it expects the number of claims to rise and has cited the number of additional claims a year as between 2,200 and 19,500. That suggests that the estimates are very vague, which makes the prospective cost of the scheme difficult to judge. The former Minister, the right hon. Member for Liverpool, Wavertree, made the intriguing comment that the Government could not make any predictions because that involved modelling human behaviour. However, all Government policy, including most economic policy, is based on modelling human behaviour, and fairly reliable estimates of what people might do under schemes and policies that are proposed have to be made on the basis of experience.

Given the difficulties that are facing the NHS, the Committee thought it rather odd that the Department was pretty relaxed about the possible cost of the scheme and that it could engage in such an exercise, despite the wide disparities in the cost estimates. As the hon. Member for South Cambridgeshire (Mr. Lansley) pointed out, such costs obviously represent money that is diverted from patient care, so the Department must have an understanding of the impact of its scheme on patient care costs.

It is for such reasons that the Committee recommended piloting the scheme, but we did not find the Department’s response to that idea at all compelling. The Department produced various arguments against the idea, one of which has significant relevance to another point that has come up in the debate. As I said earlier, one of the Government’s arguments against piloting was that the scheme will be evaluated after three years’ operation. However, according to their published response to our Committee’s report, one of the consequences of that evaluation might be that the Government will consider extending the scheme beyond hospital care, although that contradicts directly what the Secretary of State said in her speech. I can well understand why the Government might want to take the process forward in two stages and examine the experience of the hospital sector before even considering extending the scheme to primary care, but there is no doubt that the clear
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implication of their original response to the Committee was that the first three years of the scheme would be an evaluation period, after which it might be extended into the primary care sector. The Government gave that three-year evaluation as a reason not to undertake any formal piloting of the scheme. The Committee remained unconvinced about that and still thought that piloting would make sense in an area where there could be substantial cost implications.

I have referred already to the possible gatekeeper role of the Legal Services Commission. The chief medical officer, in making amends, recommended that the LSC should be able to take into account whether someone had used the NHS redress scheme when making a decision on application for legal aid. The LSC would come in at a later stage because if use had not been made of the scheme, that might be reason for refusing legal aid. If the LSC is to come in at an earlier stage—in effect, it is the body that is choosing the lawyers and determining the fees—that slightly casts doubt on whether it can properly use a refusal to use the scheme as the basis for not granting legal aid, if somebody is not satisfied and wants to go to court. There is some concern that the LSC, as a result of what the Government are now recommending, will be involved at two separate stages of the scheme.

The difficulties to which I have referred could be ironed out in various ways. They are not insuperable obstacles. I recognise the potential value to those among our constituents who have experienced the problems that the provisions in the Bill seek to address, with a scheme that could be easier to work through than a legal scheme, and one that could also satisfy their demands for clear answers, which for some constituents are more important than getting compensation.

The Committee felt that the £20,000 limit might unduly restrict the scheme. There might well be cases where someone is prepared to accept the limitations of the scheme and prepared also to accept that a case potentially justifying a larger sum could be treated under the scheme. I recognise that what the Government have produced is potentially of value. I hope that they will address some of the difficulties to which the Committee has referred and realise that in their initial responses they have either not fully done so or have generated new expectations. I hope also that in Committee they will keep very much in mind the two reports that my Committee has produced.

5.47 pm

Laura Moffatt (Crawley) (Lab): It is obvious that we all make mistakes in our working lives and at home. Admitting that fact is incredibly important for us. As for the NHS, it is not surprising that with more than £70 billion of taxpayers’ money being spent on that organisation, mistakes happen and people are even negligent and cause harm to others. That is why I am a firm supporter of the redress scheme—not in its present form, but in its simplified form that went to the House of Lords before amendments were made to the Bill.

I am surprised that accidents do not happen more often. As a nurse of 25 years in the NHS, I know that it is due only to the people who are dedicated and who do
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their jobs to the highest standard that the NHS manages to keep accidents and negligence to what I believe to be a minimum. However, if there are accidents and negligence, it is right that there is proper redress. I believe that the scheme will lead to ensuring that there is fairness and consistency in decision making. It is most important that there is faster decision making.

The scheme will encourage a willingness for members of staff to speak out when they believe that something has gone wrong.

Mr. Jim Devine (Livingston) (Lab): During my training and my hon. Friend’s training, we were given the message from the very start not to say sorry.

Laura Moffatt: My hon. Friend is entirely right. That was the message, sadly, that was given to us all. For some clinicians, that continues to be the message in terms of any legal action that might be forthcoming. That is why I believe that the scheme will be helpful in trying to get rid of the culture that has been spoken about in the Chamber.

Mr. Hurd: I would be interested to know why the hon. Lady thinks so, given her experience. It is not clear that such an embedded culture can be changed by the Bill.

Laura Moffatt: It is important to provide a fast, fair scheme that is quick to offer an apology and an explanation. If the original event is not dealt with quickly or properly, the aggrieved patient or family member is often more unhappy about the poor process than the event itself. It is therefore right to start to set things in motion and ensure that the system is fair to all. As much as I love solicitors, it is not a marvellous idea for the NHS to spend a great deal of hard-earned taxpayers’ money on them. The public are aware that accidents happen, so if someone requires a reasonable amount of compensation—and not a huge sum—it is far better that that money goes straight to them without the NHS spending very much on solicitors. That is another reason why the public generally consent to what the Bill hopes to achieve.

David Taylor (North-West Leicestershire) (Lab/Co-op): Is my hon. Friend aware that Action against Medical Accidents has argued that specialist help is needed because, under the existing arrangements, the vast bulk of cases that result in compensation are vigorously and stubbornly resisted until the last minute, when an overwhelming case has been built up, often using the advice and professionalism of dedicated lawyers?

Laura Moffatt: I am grateful to my hon. Friend for his intervention. No one is running away with the idea that a culture of defending a case to the death or the last minute is a suitable way for the NHS to do business. I sincerely hope that we can create a different culture, because delay and prevarication in cases in which a mistake has been made or in which negligence is apparent are not good for people working in the NHS or for the public.

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As I have said, it is extremely sad, but mistakes are made. Anyone who has been a member of an NHS team dealing with a mistake will know that it is extremely distressing for the doctor responsible. When I was working in Crawley hospital, a gentleman in one of the units was sadly given a massive overdose of the chemotherapy treatment that he was receiving for a serious blood disorder. There was a systemic problem, as the way in which the drug was drawn up and delivered had led to the mistake. Everyone in the team was desperately upset and the team leader, Dr. Nandi—she is an oncologist who treats people with blood disorders—worked throughout the night, having worked all day at the hospital. She brought her young children to sleep on the ward because she had to stay at the hospital to deal with the emergency. She conducted an exchange transfusion for the gentleman throughout the night. The whole team was present, including the doctor who had made the mistake and who was utterly mortified. I am glad to report that they managed to save that man’s life, which was a spectacular success considering how poorly he was and how awful the event.

It took months for that gentleman to secure redress for a genuine mistake. He did not want to denude the NHS of huge amounts of money. He wanted to make sure that the pharmacy department worked more closely with doctors on the way in which drugs were delivered, and he wanted someone to say sorry. In that case, no one was backward in coming forward. If a different system had been in place and if we had been in a position to set up an investigation that was quick to achieve a conclusion and offer an apology, he would have received his just desserts much sooner. I will always remember him as somebody who would benefit from the Bill.

I have seen the situation from both sides and I believe that the Bill will deliver confidence in the NHS. As I have said, people are not convinced that battalions of lawyers must be involved. They want an apology; they want somebody to accept that a mistake has been made. They want the NHS to recognise that sometimes people do not do the job that they should do. I have no doubt that most of the cases taken under the Bill will be genuine mistakes and things that have gone wrong, but there are, of course, times when people are negligent in their work and need to be admonished. However, we should be glad that such cases are relatively rare. I am sure that a system such as the one under discussion will expose things still further—we must have the ability to ensure that we have a clear pathway for amending mistakes and making apologies.

Let me repeat—delay is not good for the teams of staff under investigation, any more than it is for the people having to wait for their apology. Confidence will be returned to the NHS as a result of the Bill, which will create a culture of change. I have listened carefully to our debate. The contributions have been excellent and there is a willingness in the House to settle the matter and to put a scheme in place. However, the best people to tell us whether the scheme is of value are those who use it, so we should evaluate and review the scheme, without jumping in and assuming that we need to add in all sorts of independents, before we go on to make any changes. I urge the Minister to come back to
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the House and tell Members how people feel about the scheme and how effective it is for them. I believe that people will be happy to support a system that is simple and that creates confidence in the NHS, and I am certainly happy to do so.

5.57 pm

Mr. Charles Walker (Broxbourne) (Con): It is a great pleasure to follow the hon. Member for Crawley (Laura Moffatt), who was very clinical in her analysis of the problems facing the NHS.

It is impossible to set a price on loss. Losing a mother or father, or—God forbid—a son or a daughter, is an absolute tragedy. In most cases, those losses are unavoidable, but very occasionally a mistake is made by clinicians and responsibility needs to be taken. If a person has just lost someone they loved very dearly, they are in a hugely complex emotional state. If, on top of that, they have to take on the NHS, they are David challenging Goliath. For most people, that is daunting. After all, where do they start? Most people have never embarked on legal action in their life, so what is the beginning point for them?

One problem, which has been clearly identified in the debate, stems from the fact that we live in a litigation culture, which has developed over the past 20 years and which means that no one—but no one—says sorry. Even if an individual’s urge and driving force is to apologise for the mistake that they made, they are taken aside by a lawyer or senior manager and told, “Whatever you do, do not apologise to this family.” Often, such an apology at a very early stage would mean so much, and put an end to a great deal of suffering. It would halt much of the needless litigation in the NHS. Hospitals are frightened to admit any form of liability, lest they face a very expensive legal claim.

I broadly welcome the Bill. It is not as good as it could be, but it goes a long way towards addressing some of the concerns that I shall raise. Three years ago, a constituent lost her mother, who had heart disease and lung cancer. She was dying, but she was not meant to die on the day that she did die; she was meant to go into hospital for routine checks and be sent home. A litany of mistakes were made in the treatment of that elderly lady, perhaps the two most serious of which were the fact that bedsides were not put up on her bed, so she rolled out and fractured her hip, and in response to that she was pumped full of fluids, which was the mistake that led to her unfortunate death.

My constituent bravely and nobly took her complaint to the health service ombudsman. I have a 34-page report, which is devastating in its content. One of the saddest parts is in the last paragraph, in which the senior investigating officer, Sarah Gallagher, writes:

to my constituent—

in the report. That was welcomed by my constituent, but what she really wanted was an apology from the chief executive or the chairman of the trust. She did not want an apology via a third party. She wanted an apology from the people who run that organisation,
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who are responsible for its day-to-day management. It was only after my intervention that she got an apology.

I bear no grudge against the chief executive and chairman of that trust. They were operating within the parameters that the NHS had set them. But I do bear a grudge against a system which for two and a half years made them feel that they could not issue an apology to my constituent. Echoing some of the comments made by hon. Members on both sides of the Chamber this afternoon, I question some of the legal advice that the NHS receives from its lawyers, which seems pretty poor.

My constituent’s lawyers are in negotiation with the NHS for a cash settlement. It is not a huge settlement—well below the £20,000 being discussed today. She wants £10,000; the NHS is offering £5,000. This has gone back and forth between solicitors for a year and a half, with the NHS quibbling over £5,000 after a devastating ombudsman’s report. If the Bill addresses such inequities, it is a step in the right direction.

When I raised the matter with the then Minister, the right hon. Member for Liverpool, Wavertree (Jane Kennedy), I received a wonderful compassionate response from her. At the bottom of her letter there was a handwritten note passing on her condolences and apologies to my constituent, which was gratefully received. I am sure the Minister of State, the hon. Member for Leigh (Andy Burnham) will do as good a job as his predecessor. In this case she was outstanding, and a credit to her profession as a politician.

My one concern about the Bill is that my constituent’s faith in the NHS is shot to pieces. She does not believe that she has been treated fairly. If it was suggested to her that a new system was in place to ensure that she received fair recompense and that there would be an investigation by the NHS to make sure that the mistakes were not repeated, she would not attach much credit to those promises. She believes that the NHS is ultimately self-serving—I am sure that it is not—that it will seek to protect itself, and that the Bill probably would not go far enough to change that.

I hope the Minister will give serious thought to ensuring that the process for helping patients and those who have lost loved ones who bring a claim against the NHS is transparent and, most importantly, impartial. The redress scheme must be the patients’ champion and the champion of the bereaved, not just another arm of the NHS which is perceived, perhaps wrongly, as existing to protect the status quo.

6.4 pm

Barbara Keeley (Worsley) (Lab): As colleagues and Opposition Members have done, I welcome to his new role the Minister of State, my hon. Friend and neighbour the Member for Leigh (Andy Burnham). I am sure that he will do a great job.

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